Informal Factfinding Charts by rdi17838

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									                          SAMPLE ADR AGREEMENT

                                 FACT-FINDING

THIS AGREEMENT is entered into by ________(Contractor) and the Air Force.

WHEREAS, the parties entered into Contract No. ______________; and

WHEREAS, the Contractor filed an appeal with the Armed Services Board of
Contract Appeals (ASBCA) under or relating to that contract; and

WHEREAS, the appeal is designated ASBCA No. _____; and involves claims by
the Contractor for [OR Air Force for] ___ in the amount of $ ___________; and

OR [for pre-claim or pre-appeal situation, use the following:

WHEREAS, the Contractor has submitted a [certified (if applicable)] claim [OR
certified (if applicable) request for equitable adjustment (REA)], dated ___, in the
amount of $ _____; and]

WHEREAS, the parties wish to resolve the appeal [OR claim, OR REA] by non-
binding alternative dispute resolution (ADR), specifically an unassisted fact-
finding proceeding.

[Consider whether to set forth a resolution plan if fact-finding does not result in
settlement. For example: WHEREAS, if the parties are unable to resolve the
appeal [OR claim, OR REA] by unassisted fact-finding, the parties wish to
attempt resolution via non-binding alternative dispute resolution (ADR),
specifically, mediation with the assistance of a Neutral [OR mediation with
outcome prediction] [OR WHEREAS, the parties wish to resolve the appeal by
alternative dispute resolution, specifically summary trial with binding decision,
[OR mediation followed by (if necessary) by binding decision] under the Contract
Disputes Act]. If you choose to identify the multi-step resolution plan, incorporate
the needed language from the appropriate model agreements. Note that for pre-
appeal situations, the parties must secure ASBCA jurisdiction before using any
binding ADR procedure. If a binding procedure is contemplated in the resolution
plan, make sure that the ADR agreement sets forth the dates by which the
contracting officer final decision will be issued and the appeal will be filed with
the ASBCA.]

Accordingly, the parties agree as follows:

1. Schedule. The fact-finding proceeding is scheduled for ______ days(s),
namely _________, at _____________. [If setting forth a multi-tiered resolution

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plan, list the other ADR processes, dates, and locations, if known, or state that
they will be set for an agreed upon time and place. If a pre-appeal, also note the
date by which the final decision(s) and appeal(s) will be accomplished.]

2. Issue Identification. The parties agree that the following issues are in dispute:

       1.
       2.
       3.

OR

2. Issue Identification. The parties will exchange a list of proposed issues on
____. After any necessary discussions, the parties shall prepare a list of agreed
issues on or before ___. The submissions discussed below will set forth the
parties’ respective positions on each issue.

3. Discovery. The parties will exchange for inspection and copying relevant [OR
requested (eliminates confusion as to what is “relevant”)] documents at a mutually
agreeable time and place in advance of the fact-finding session. The parties are
also free to make informal and formal discovery requests. The production of a
document protected from disclosure will not waive any otherwise applicable
privilege.

OR

3. Discovery. The parties will exchange for inspection and copying requested
documents at a mutually agreeable time and place in advance of the fact-finding
session. [Optional: provide a provision for bates stamping opposing parties
documents]. Inadvertently producing information that is protected from disclosure
will not waive any otherwise applicable privilege. Informal witness interviews
[OR depositions] will be conducted for the following individuals ___________ at
a mutually agreed time and place. [Consider including limitations: Discovery will
be limited in the following manner: The number of interrogatories will not exceed
___, including subparts, and will be limited to the following issues:
_____________________. The number of depositions will be limited to ____ and
the following people will be deposed: ___________________. (Consider whether
beneficial to further limit depositions as to issue subject matter, and time limit on
length of deposition.)] Discovery will be concluded on ________, and will not be
extended. [For expedited discovery, list specific deadlines for sending and
answering interrogatories, noticing and conducting depositions, and exchanging or
producing, and copying documents. For additional discovery options and other
circumstances, see the “Discovery” clause under the Model Clauses folder.]


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4. Audit. The Contractor will timely cooperate with DCAA to audit the
Contractor’s incurred cost of performance and the additional costs that the
Contractor seeks from the Air Force. The Contractor will provide all documents
and other information necessary for the audit. The Contractor will also authorize
all individuals and activities to provide DCAA with documents, other information,
and an explanation of the Contractor’s work papers and documents. The
Government and the DCAA will follow their normal audit practices. [Consider
addressing what types of information and documents are to be provided to the
auditor and whether there will be any restrictions on the use of the information and
documents provided. For additional audit clause language, see “Audits” in the
Model Clauses folder.]

5. Stay of litigation. Except as provided in this agreement, formal litigation is
stayed pending termination of the ADR.

6. Factfinding. The goal of the fact-finding proceeding is to resolve the matters in
dispute between the parties through negotiation by the parties’ principal
representatives. At a minimum, the parties wish to identify areas of agreement
and identify, define, and narrow the remaining issues in dispute. To this end, the
fact-finding proceeding will be aimed at informing the principal representatives of
the underlying bases of the parties’ positions in a setting that encourages full and
open disclosure. The parties will act in accordance with the following fact-finding
procedures:

       I. Submissions. The parties will exchange written position papers on
       _____. The parties also may exchange a rebuttal statement, with exhibits
       on ___. The submissions will use margins no smaller than one inch and
       typeface not smaller than 12-point type. The position papers and rebuttal
       will not exceed ___ and ___ pages respectively, including footnotes and
       excluding cover pages, tables of contents and authorities, indices, and
       exhibits. [Consider whether to include a provision allowing either party to
       request certain witnesses in the other party’s control be made available at
       the fact-finding.]

       OR

       I. Submissions.

              a. Position Papers: No later than __ calendar days before the fact-
              finding, the parties will exchange one copy of the party’s “position
              paper,” which shall be no more than ___ double-spaced, 8 ½ x 11
              pages, including footnotes, with no less than one inch margins top,


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        sides and bottom and type font no smaller than 12 point. The
        position paper will explain the party’s factual and legal position
        regarding the ___ issues. The parties will not submit replies to the
        other party’s “position paper.” [OR Replies to each party’s position
        paper will be due __ calendar days before the fact-finding, shall be
        no more than ___ pages, in the same format and under the same
        restrictions as the “position paper.”]

        b. No later than ___ calendar days before the fact-finding, the
        parties will exchange:

               i. All exhibits the parties anticipate using at the fact-finding.
               Exhibits will be provided in a three-ring binder(s). For ease
               of reference, each document in a binder will be separately
               tabbed and indexed. The tab index will contain the tab
               number, the date of the document, and a brief description of
               the document. A complete tab index will be the first item
               contained within each binder. [Consider whether it would be
               of benefit to include instructions to assemble the documents
               either by issue or chronologically.]

               ii. In the event that a party’s presentation contains any form
               of demonstrative electronic media, such as a power point
               presentation, or other form of electronic media, it will [OR
               will not] be provided at the time as the document binder(s).

        c. No later than ___ calendar days before the fact-finding, the
        parties will exchange:

               i. A list of expected participants in the party’s fact-finding
               presentation. The list will contain a brief description of
               specific subject matter the participant will be addressing
               along with the estimated length of time. [Consider whether to
               include a provision allowing either party to request certain
               witnesses in the other party’s control be made available at the
               fact-finding.]

               ii. Any documents in rebuttal to the other party’s position
               paper, to be provided in the form specified above.

II. Fact-finding proceedings. Each party will have a total of __ hours to
present its case and may use any of the following: witness narrative,
statements and argument of counsel, documents, summaries, charts or other


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     demonstrative evidence. Beginning at ___a.m. on ___, the Contractor will
     make its presentation, which will not exceed __ hours. After the
     Contractor’s presentation, the Air Force will make its presentation, which
     will not exceed __ hours. [Consider: After the Air Force’s presentation, the
     Contractor will make its rebuttal presentation, which will not exceed __
     hours. And after the Contractor’s rebuttal, the Air Force will make its
     rebuttal presentation, which will not exceed __ hours.] [Note: When setting
     the schedule, if rebuttal is included, figure in a reasonable time period for
     rebuttal preparation.] Once the parties have made their initial presentations,
     each party will have an opportunity to ask questions of the other side
     regarding their presentation. [Consider tailoring this paragraph to allow an
     optional negotiation period conditioned upon principal’s receipt of decision-
     quality information.]

     [Consider including a provision calling for the parties to reduce mutually
     agreed upon facts to written stipulations for use in later proceedings, if
     necessary, including other ADR techniques and trial proceedings.]

     [Consider including separate additional sections here on further ADR
     proceedings if fact-finding does not result in settlement.]

7. Participants. The principal representatives for the purpose of this proceeding
will be:

      For the Contractor:                _______________________

      For the Air Force:                 _______________________

Each party represents that its principal representative will come to the ADR
proceeding with full authority to settle the matter, and that it will obtain any
required reviews or approval in advance of the proceeding. [Remember, only the
contracting officer has the authority to sign settlement modification (see FAR
33.210, and FAR 33.214).]

8. Confidentiality. This entire process, including the parties’ conduct and
statements, shall be considered settlement discussions for the purpose of Fed. R.
Evid. 408. The information used in this proceeding may also be protected from
disclosure by the Administrative Dispute Resolution Act of 1996. Except as
authorized by law or permitted by the parties’ written agreement, the information
prepared for this proceeding shall not be used for any other purpose and shall not
be disclosed to any non-participant.




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This agreement does not preclude disclosure of this agreement or any settlement
agreement. Nothing in this agreement prevents a Contractor from disclosing
information within its organization, or prevents the Air Force from disclosing
information within the Government, when the disclosure is necessary for a review,
approval, or justification of the settlement. The parties and their attorneys may
also use confidential information if it is necessary for proceedings under the Equal
Access to Justice Act or to respond to challenges to the propriety of the actions of
a party or their attorney.

Disclosure of privileged information shall not waive any otherwise applicable
privilege. Information that is otherwise admissible or discoverable shall not be
rendered inadmissible or not discoverable merely because of its use in this
proceeding.

[Note: Confidentiality is also addressed in the ADRA of 1996 (5 U.S.C. §574)
and FAR 33.214(e). Thus, the Confidentiality clause is not mandatory. However,
it should be considered, and if appropriate, a tailored provision can be included.
The ADR agreement should define the extent, if any, to which information
exchanged is to be treated as confidential settlement communications and the
extent to which it can be used in connection with later litigation. (Remember that
documents normally included in the Rule 4 file will need to be used in litigation in
the event ADR and/or settlement efforts fail.) For additional information and
language addressing confidentiality, see the “Confidentiality” clause under the
Model Clauses folder. If you decide not to use a confidentiality clause, consider
using at a minimum, the following:

9. Subsequent use of statements and documents. Future admissibility of any
statements or admissions made or documents used in connection with this ADR
proceeding will be governed by Federal Rule of Evidence 408. However,
evidence otherwise admissible under the Federal Rules of Evidence and/or
ASBCA Rule 4, is not rendered inadmissible because of its use in this ADR
proceeding.]

10. Costs, fees, and expenses. Each party will bear its own fees and expenses,
including but not limited to attorney and agent fees and compensation for
witnesses, incurred incidental to the ADR proceeding. The Contractor waives any
right under the Equal Access to Justice Act or other authority to recover attorney
fees or other costs associated with this ADR proceeding. [In ADR procedures
involving REAs, consider including limiting language such as: “Costs in
preparation for or otherwise associated with this ADR procedure will be borne by
Contractor.” In addition, if the Contractor will not agree to waive EAJA, consider
including issue of EAJA in the ADR proceeding.] [Note, if a claim has been filed,
CDA interests is running during time period of ADR proceeding. If no claim has


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been filed and ADR process addresses issues in REA, be aware that the Contractor
may subsequently try to argue and recoup those costs associated with ADR
procedure as REA preparation costs, even when the parties agree to bear their own
expenses. The cost of preparation and presentation of claims against the
Government are not allowable, thus not reimbursable as part of an equitable
adjustment. FAR 31.205-47(f)(1); FAR 31.205-47(a). However, costs associated
with contract administration, such as preparation for a request for equitable
adjustment, might be reimbursable. The problem is that there is rarely a bright line
between claims preparation and contract administration costs in practice. Every
case is unique and requires research into legal precedent, which in this area can be
very technical and complex in application since all holdings are fact sensitive.
Therefore, have available sufficient legal justification prior to agreeing to a
settlement involving such costs. This is particularly important in ADR procedures
involving early intervention REA scenarios. Generally, the Board will look at the
nature of the costs, how they were incurred and when they were incurred.]

11. Good faith. All participants in the ADR proceeding agree to act in good faith
in all aspects of the proceeding with the view of resolving the dispute.

12. Termination and Settlement. Each party has the right to terminate the ADR at
any time for any reason. [Consider, if further nonbinding ADR proceedings are
identified in this agreement: The Neutral may also terminate the ADR at any time
if, after discussions with the parties, the Neutral believes that further negotiations
are unlikely to be fruitful. The Neutral may also terminate the ADR for other
good reasons that need not be disclosed.] [Consider, if a confidentiality provision
is included in this agreement: If the ADR is terminated, the confidentiality
provisions of this agreement remain in effect.] If the parties reach a complete
settlement, the parties will jointly move the ASBCA to dismiss the appeal with
prejudice, subject to reinstatement only if the settlement is not consummated. If
the parties do not reach a settlement agreement on any issues, the parties will
jointly move the ASBCA to lift the stay on Contractor's appeal.

13. Amendments to this Agreement. The parties may change any provisions of
this agreement by mutual written agreement at any time.

            CONTRACTOR                                    AIR FORCE

By: __________________________                By: ____________________________
                                                  Contracting Officer

Dated: ________________________               Dated: __________________________




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